In the wake of Michael Sussmann's "not guilty" verdict, the validity of the entire Durham investigation has been alternately criticized and defended.   And while much focus has been placed upon the Court's potential ethical conflicts, not enough attention has been given to the skills of Sussmann's lawyers in directing the Court to tenable rulings.

The crime for which Sussmann was charged was telling the FBI that he was not representing a client when he submitted to the Bureau a "White Paper" detailing Donald Trump's supposed ties to Russia by means of a Trump Tower server connecting to Russia's Alfa Bank server.  In fact, Durham alleged, Sussmann was representing the Clinton campaign and tech executive Rodney Joffe, the main forces behind the White Paper, and had billed both clients for the FBI meeting.  If he represented either, he should have been found guilty.

So how did Sussmann's team introduce doubt as to his representation?  His former partner, Marc Elias, the chief lawyer for the Clinton campaign, testified that telling the FBI of the Alfa Bank matter was not part of his firm's work.  To be sure, the campaign wanted the Alfa Bank allegations disseminated, but, golly, Mrs. Cleaver, not to the FBI.

What about Joffe, who did not testify?  The Sussmann team argued that, while Sussmann and Joffe thought this a national security matter about which the FBI should learn, his work for Joffe was advising on disseminating the information to the press, not to the FBI.  So Sussmann, the story went, was in fact going to the FBI purely out of "good citizen" motives.  If all this was true, or not demonstrably untrue, Sussmann should have been acquitted.

So how could Durham combat this narrative?  First, it was clear from the email traffic that Joffe and his researchers at various universities knew that the data were inaccurate and discussed how to shield their presentation from being immediately labeled false.

From this, one may infer, Joffe (and Sussmann) wanted to disseminate the paper to the FBI, but not because they sincerely cared about national security, which would not be served by false information.  Thus, the jury could infer, the only real purpose would be political: anti-Trump information helping Clinton.  So this admitted inaccuracy would help convict Sussmann, correct?  No. 

Since there was no proof that Sussmann saw the emails between his client Joffe and the researchers, and since Sussmann was not vouching for the accuracy of the data, according to his lawyers, the court should not admit them, nor any evidence of inaccuracy.  Of course, Sussmann had lengthy conferences — and written communications — with Joffe, but these were protected by the attorney-client privilege. 

Twice after meetings among Joffe, Sussmann, and Elias, Joffe emailed his researchers.  But Sussmann was not copied on the emails, even though one may infer that the emails resulted from the prior meetings with Sussmann and Elias.  After one meeting, Joffe emailed his research team that the "VIPs would be happy" if they could link Trump and Russia.  Clinton adviser Jake Sullivan later tweeted that he had assumed that federal investigators would be examining the researchers' allegations, retweeted by Hillary Clinton herself.

Because of other Fusion GPS emails, the court in its opinion noted that this Joffe email tended to show a conspiracy among Joffe, the Clinton campaign, and Fusion GPS.   Since Sussmann represented both the Clinton Campaign and Joffe, and hired and directed Fusion GPS, wouldn't this email be game, set, and match convicting Sussmann as representing a client when bringing these allegations to the FBI?  After all, it looks as though Joffe wished to give the press and the FBI a story harming Trump and helping Clinton.

After the election, Joffe emailed an associate, claiming he had been offered a top cyber-security job in the Clinton administration had Hillary Clinton won.  Wouldn't this cement Joffe's connection to Clinton and Sussmann, who also represented the Clinton campaign?  Clearly, it would appear, this was Joffe's motive — that is, helping Clinton win through a false story, not promoting national security through a true one.

At trial, as they had to, given the evidence, all concerned admitted that they wished the Alfa Bank allegations to go to the press, which included the Clinton campaign (director Robby Mook so admitted), Joffe, and Fusion GPS, while Sussmann was admittedly hired at least by Joffe to "disseminate" the allegations to the press.  This common purpose suggests that whether legal or illegal, the whole group was in a joint venture or conspiracy to disseminate this information, at least to the press.  If so, then all of the Joffe emails could be admitted, including emails showing he knew that the information was highly suspect.  This is so because statements of a co-conspirator or a legal join venturer are not considered inadmissible hearsay, but are instead admissible. 

But Sussmann's lawyers persuaded the court that it had the discretion to refrain from going through the exercise to determine if there was a joint venture or conspiracy.  So the court exercised its discretion not to do so, while casting doubt in his opinion that there was a such a venture.

Accordingly, all of the evidence that the data were clearly inaccurate, and the statements of Joffe showing his motive to help Clinton, never made it to the jury, nor did the Clinton campaign tweets. 

The burden of this article is not to criticize the exercise of the court's wide discretion, but only to show that the case would not have been weak if discretion were exercised in a different manner, in part or in whole.  Accordingly, we give kudos to Sussmann's legal team but blow raspberries at the realities of what Sussmann was doing when he went to the FBI. 

Part of the function of a public trial in a democracy is to tell the public a story.  While Sussmann was properly acquitted by the jury based on the evidence it received, and the Court was within its discretion in controlling the evidence, the public has been able through Durham's work to learn what appalling dishonesty the Clinton campaign was intentionally disseminating, far eclipsing any skullduggery of Richard Nixon's White House in Watergate.

John D. O'Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005.  O'Connor is the author of the book Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate, and Began Today's Partisan Advocacy Journalism and the host of the podcast series The Mysteries of Watergate.

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